On October 31, 2022, the General Counsel for the National Labor Relations Board (NLRB), Jennifer Abruzzo, issued a memorandum instructing regional offices to closely scrutinize employer use of certain electronic monitoring, data collection and automated management technologies. This memorandum further evidences the NLRB’s commitment to effectuating a strong national labor policy which includes protecting employees’ organizational rights and encouraging collective bargaining as described in our November 2020 client alert. Abruzzo reiterated these policy objectives in her February 2022 memorandum issued in support of the Biden administration’s Task Force on Worker Organizing and Empowerment’s February 2022 labor report.
On September 15, 2022, railroad companies and unions representing railway workers reached a tentative agreement to potentially prevent a strike that would have caused significant harm to the American supply chain and economy. While the unions’ membership must still ratify the agreement, the unions agreed not to strike during that process. Ratification votes will occur over the next 45 to 60 days. If any union does not ratify the agreement, then it may have the right to strike.
On September 6, 2022, a split National Labor Relations Board (NLRB or the Board) released its long-anticipated Notice of Proposed Rulemaking that would lessen the burden in proving that two companies jointly employ workers under the National Labor Relations Act (NLRA). This proposed standard, in effect, would increase the scope of joint employment relationships to include indirect and unexercised control over the essential terms and conditions of a job. In contrast, the prior standard — adopted in April 2020 by a Republican-majority Board — required that an employer have direct and immediate control over these essential terms and conditions. Moreover, the putative joint employer had to actually exercise that control. Before that, in 2015, a Democrat-majority Board issued a decision holding that a company need only hold indirect control over the terms and conditions of employment to be considered a joint employer.
On July 13, 2022, Maryland’s Court of Appeals, the state’s highest court, held that state wage law claims for certain travel pay survive summary judgment despite the fact that such payments are not required under the federal Portal-To-Portal Act (PPA or the Act). The Court of Appeals interprets Maryland law as requiring wage payments for time spent waiting and traveling to a worksite if the waiting site is considered a prescribed workplace.
On August 29, the National Labor Relations Board (NLRB or the Board) overturned a 2019 decision concerning the lawfulness of employer-promulgated dress codes and workplace apparel policies. In Tesla, Inc., the Board majority held that a workplace rule or policy that limits an employee’s ability to wear union insignia and logos is presumptively unlawful unless the employer can show that special circumstances exist to justify such a rule.
On June 28, 2022, Jennifer Abruzzo, the General Counsel for the National Labor Relations Board (NLRB or the Board), announced via Twitter that she petitioned the Board to adopt a compensatory make-whole remedy in refusal to bargain cases. In August 2021, Abruzzo issued an internal memorandum detailing potential changes she sought to effectuate during her tenure. The make-whole remedy, which was briefly mentioned in the General Counsel’s memorandum, would disincentivize employers from refusing to bargain with unions and is consistent with this administration’s policy goal of facilitating and increasing collective bargaining.